exist my last post Regarding President Biden’s plan to cancel hundreds of billions of dollars in student loan debt, I criticized the administration’s claim that the policy was authorized by the emergency powers provisions of the Heroes Act of 2003. But there is another potential legal basis for the policy: Section 432(a) of the Higher Education Act of 1965(now compiled as 20 USC Section 1082(a)(6)which authorizes the Secretary of Education to “enforce, pay, compromise, waive or release any right, title, claim, lien or demand, however acquired, including any equity or any right of redemption” in relation to federally authorized direct loans plan.
Fordham Law Professor Jed Sugarman highly picky The Government’s Theory of Heroic Action, think The Higher Education Act (HEA) makes a stronger case for Biden’s plan. earlier, Senator Elizabeth Warren and others Arguing that Section 432(a) could justify even larger debt cancellation programs.Last year, the government view the theory with skepticism. But if Biden’s plans are challenged in court, they could still resort to it.
In some respects, the HEA argument is indeed superior to the heroic action theory. In isolation from the rest of the act, Section 432(a) does appear to give the executive branch the power to cancel as much student loan debt as possible.This can be inferred from the power to “give up…or release” any right, title, claim, lien, or demand” (emphasis added). Furthermore, unlike the Heroes Act theory, HEA justifications are not limited to emergencies or that borrowers can reasonably claim that an emergency or disaster makes it worse for them It’s hard to pay off debt. If the arguments are correct, the government can cancel any amount of federal student loan debt for any reason at any time.
But a closer look shows that the HEA theory is flawed, possibly for the same reasons as the rationale for the Heroes Act. In fact, its breathtaking range contributed to its demise.
The basic principle of HEA is January 2021 Memo Written by then-Deputy General Counsel Reed Rubinstein for outgoing Trump Administration Education Secretary Betsy DeVos (actually Secretary DeVos) resignation protest Trump’s role in the Jan. 6, 2021 attack on the Capitol comes days before the memo was formally presented to her; but I don’t think that changes the state of it). I disagree with everything Rubinstein said. But he did make several points against Section 432(c) giving the Secretary of Education a blank check to cancel student loan debt.
As Rubinstein points out, “Read 20 USC § 1082(a)(6) to allow the secretary to [of Education]Cancellation, compromise, discharge or forgiveness of student loan principal balances on a full or large-scale basis” would make redundant various other provisions in the HEA and subsequent regulations that empower the Minister to cancel or Power to limit debt. And, as he rightly explains, there has long been a presumption against interpreting statutes in a way that makes parts of statutes redundant. The Supreme Court has repeatedly reiterated this principle.
To avoid this and other problems, Rubinstein suggested that it would make more sense to interpret Section 432(c) as only granting the Secretary the power to waive or forgive student loan debt “on a case-by-case basis and only in those circumstances designated by Congress.” In this case, the provision helps remove any ambiguity about the Department of Education’s ability to waive any relevant rights and to do so in any manner the Department deems appropriate.
like heroic action theory, the HEA rationale of Biden’s plan is vulnerable to “major problems” and non-authorization principles.former need congress “Make it clear when authorizing [executive branch] Institutions exercise powers of enormous economic and political significance. “If a law is ambiguous, courts must presume that Congress did not confer the relevant powers on the agency.
Jed Sugarman argue correctly The Heroes Act arguments contradict the Supreme Court’s recent ruling on big issues. The power to forgive hundreds of billions of dollars in student loan debt, based on a broad definition of an “emergency,” is undoubtedly a power of “huge economic and political significance.” But even more so with the HEA theory, which would give the executive branch the power to cancel any amount of student loan debt at any time and for any reason.
Under the HEA approach, the administrator’s authority to cancel student loan debt is largely unrestricted. If the main problem doctrine applies anywhere, it certainly applies here. Rubinstein’s analysis shows that there is at least some apparent ambiguity about whether Section 432(c) — read in conjunction with the rest of the Higher Education Act — actually gives the government such enormous powers. If so, the main question principle requires a federal court to rule against the executive branch.
The truth of the big question doctrine also applies to non-authorization.exist my previous post, I explain why, if there is a meaningful constitutional limit to Congress’s power to delegate power to the executive branch, the Heroes Act theory could conflict with them. This reasoning is more applicable to the rationale of HEA, which would give greater discretion to the executive branch. The Constitution gives Congress, not the president, the power to allocate federal funds. Giving the president unfettered authority to strip the Treasury Department of hundreds of billions of dollars in student loan debt is a truly massive mandate.
At the very least, as the Rubinstein Memorandum points out, the court must apply the Supreme Court’s longstanding Classic objection to interpreting federal statutes in a way that raises constitutional questions. in his controlling opinion NFIB v Sebelius (2012), Chief Justice John Roberts famously emphasized that the rule requires courts to reject the “most natural” reading of a statute if there is any “probable” interpretation that would avoid the risk of making it unconstitutional. Rubinstein’s interpretation of Section 432(c) is at least a “fairly probable” interpretation that would allow the Court to avoid facing massive constitutional non-authorization issues.
I’m not a big fan of the constitutional evasion canon, especially Roberts’ very broad view of it. But the Supreme Court seems unlikely to contain it anytime soon, and lower courts must follow it.
All in all, Biden’s HEA rationale for canceling the loan program has some advantages over the Administration’s Heroes Act theory. But the enormous scope of power that the theory gives to the executive branch should lead the courts to reject it.
Update: I plan to write another article in this series addressing the question of whether anyone has the right to sue to challenge loan debt cancellation policies.